Raja Saeed Akram Khan, C.J.--The captioned appeal, by leave of the Court, has arisen out of the judgment of the High Court dated 14.01.2020, whereby the writ petition filed by the appellant, herein, has been dismissed.
2. In consequence of the advertisement dated 21.02.2018, Respondent No. 5, herein, (respondent) was appointed as Primary Teacher through order dated 27.02.2019, with a condition that the order would be deemed non-existent in case the relaxation in'the upper age limit is not granted by the concerned. The appellant, herein, called in question the aforesaid appointment order by filing a writ petition before the High Court on the ground that he stands at Serial No. 1 in the waiting merit list, whereas, the official respondents have appointed the respondent who is overage and cannot be appointed as such. In rebuttal, a verification was placed on record before the High Court that the respondent has been serving in the department from 22.05.2014 to 28.02.2019, without any break, hence, as per AJ&K Civil Servants (Relaxation of Upper Age Limit) Rules, 1997, (hereinafter to be referred as Rules, 1997) he is entitled for automatic relaxation in the upper age limit. Consequently, the learned High Court dismissed the writ petition in limine, through the impugned judgment.
3. Before this Court, the main stress of the learned counsel for the appellant is that the disputed post was advertised on 21.02.2018, wherein the upper age limit for appointment against the disputed post was provided as 40 years. At the time of filing of application for appointment, the age of respondent was 44 years but despite this his application was considered and thereafter appointed. The appellant was appointed subject to the condition that the department has already moved for obtaining the relaxation in the upper age, if the same is not granted, the order would be deemed cancelled from the date of issuance, whereas, according to the Rules, 1997 it was the duty of the appellant to obtain the relaxation in upper age limit before filing the application for appointment as laid down by this Court in the case reported as Abid Akram vs. Danish Zaib & others [2015 SCR 732]. As the respondent failed to obtain the relaxation in the upper age limit before applying for appointment against the disputed post, hence, his appointment is null and void and the same be declared as such. It was stressed that the impugned judgment has been passed while relying on false and fabricated verification issued by a close relative of the respondent.
Likewise, the Last Pay Certificate issued in favour of the appellant is also bogus. It is contended by him that the upper age limit has already been enhanced to 40 years, which cannot be further relaxed. In this state of affairs the observations of the learned High Court are patently illegal, hence, liable to be set-at-naught.
4. Sardar Abdul Sammie Khan, Advocate, appearing on behalf of the respondent seriously defended the impugned judgment on the ground that the appointment order of the respondent has rightly been issued. Along with the concise statement, he has annexed the copies of relevant part of Budget Book 2017-19, order of appointment of respondent as Social Mobilizer dated 22.05.2014, extension orders etc., and submitted that all these documents fully support the verification issued by Respondent No. 7 (Asad-ur-Rehman), hence, the argument of the learned counsel for the appellant that the verification is fake, is baseless. The learned counsel further emphasized that in the light of. Rule 4(v) of Rules, 1997, the period of 4 years, 8 months and 6 days, served by the appellant in Population Welfare Department without any break, is liable to be excluded from upper age limit. Hence, the judgment delivered by the High Court is well in accordance accordance with law and rules.
5. We have impassively heard the learned counsel for the parties and carefully inspected the record.
6. The disputed post was advertised on 21.02.2018, wherein, the upper age limit was provided as 40 years. The appointment order of respondent was issued on 27.02.2019 imposing the condition therein that the department has already moved for obtaining the relaxation in the age, if the same is not granted the order would be deemed cancelled from the date of its issuance. It is the stance of the appellant, who has challenged the appointment order of the respondent by way of writ petition before the High Court, that at the time of filing the application for appointment, the respondent was overage, hence, in view of the dictum laid down in the case reported as Abid Akram vs. Danish Zaib and others [2015 SCR 732] his appointment is illegal as he failed to obtain the relaxation prior to filing of the application. We have no cavil with the contention of the learned counsel for the appellant, but in the referred case the controversy was relating to obtaining the relaxation in upper age limit as per Rule 6 of Rules, 1997. For convenience, we deem it appropriate to reproduce here the Rules, 1997 as follows: "NOTIFICATION No. S&GAD/R/A-4 (49)/97. In exercise of the powers conferred by Section 23 of the Azad Jammu and Kashmir Civil Servants Act, 1976, the Government is pleased to make the following Rules, to relax and regulate the upper and lower age limit prescribed for recruitment to various posts, namely:-
1. These Rules may be called the Azad Jammu and Kashmir Civil Servants Recruitment (Relaxation of age limit) Rules, 1997.
2. These rules shall apply to the recruitment of civil posts.
3. They shall come into force at once.
4. Notwithstanding anything to the contrary contained in any rules applicable to any post or service: i) in the case of a person whose services under Government have been terminated for want of vacancy, the period of service already rendered by him shall for the purposes of upper age limit under any rule, be excluded from his age; or ii) in the case of an. Ex-Defence personnel, the interval between the date of his release from the Defence forces of Pakistan, including the Mujahid Force and the date of re-employment in a Civil Department, subject to a maximum of seven years, the whole period of service rendered by him in such forces shall, for the purpose of upper age limit under any rule; be excluded from his age; iii) in the case of a person who has rendered National Service under the Pakistan National Service Ordinance, 1970, the period actually spent by him in such service shall, for the purpose of upper age limit prescribed under any rule, for appointment to any post/service, be excluded from his age; or iv) in case where additional period spent by the specialists after acquiring the minimum qualification prescribed for a post of their professional studies/professional work shall be excluded from their age while determining their age for appointment to civil posts; or v) in the case of a candidate already working as a Government servant on permanent. ad-hoc, work charge. temporary basis the period of his continuous service as suchr shall, for the purpose of upper age limit prescribed under any service rules of the post for which he is a candidate, be excluded from his age.
5. The lower age limit prescribed for recruitment to any post may also be relaxed by the Government where the circumstances so warrant, but it shall not be less than 18 years.
6. The relaxation of age limit shall be allowed rarely and only in cases involving factors beyond human control which merit due consideration. The approval of the Government in this regard shall be obtained by the Department concerned through Service and General Administration Department.
7. Azad Jammu and Kashmir Civil Servants Recruitment (Relaxation of age limit) rules, 1995 are hereby repealed."
(underlining is ours)
A perusal of Rule 4, ibid, shows that relaxation in upper age limit has been provided for the persons whose service under the Government has been terminated for want of vacancy and in the case of an Ex-Defence personnel, the interval between the date of his release from the Defence forces of Pakistan, including the Mujahid Force and the date of re-employment in a Civil Department, has been relaxed. Relaxation is also provided to the persons who have rendered, National Service under the Pakistan National Service Ordinance, 1970. Likewise, relaxation is also provided to the specialists who spent additional period in pursuit of their profession studies and to the candidate already working as a government servant on permanent, ad-hoc, work charge, contract or temporary basis. Shortly stated, clauses (i) to (v) of Rule 4, categorically postulate that the period mentioned therein shall be excluded while counting the upper age limit. By using the word "excluded" the relevant authority has been vested with the power to exclude the period mentioned in each category.
7. Coming to the case of the appellant, Rule 4(v), ibid, provides that in case of a candidate already working or has been working as a Government Servant on permanent, adhoc, work charge, contract or temporary basis, the period of his continuous service as such, shall for the purpose of upper age limit prescribed under any service rules of the post for which he is a candidate, be excluded from his age. The verification issued by District Population Officer, Muzaffarabad, on 12.03.2019, shows that the respondent remained serving in the Population Welfare Department as Social Mobilizer and Junior Clerk on temporary basis from 22.05.2014 to 28.02.2019, without any break. The Last Pay Certificate, issued in his favour, further strengthens this verification. Although, the learned counsel for the appellant has mainly stressed on the point that the verification and Last Pay Certificate issued by the District Population Officer, Muzaffarabad are fake and bogus, however, the learned counsel for the respondents, along with his concise statement, has brought on record the documents which show that the appellant served on temporary basis in the Population Welfare Department for 4 years, 8 months and 6 days. If the verification issued by Respondent No. 7 is read together with the documents brought on record by the learned counsel for respondent; there remains no occasion for us except to believe that the alleged verification is valid. After excluding the aforesaid period, in the light of Rule 4(v) of Rules, 1997, the respondent was not overage, hence, the learned High Court committed no illegality while dismissing the writ petition filed by the appellant.
8. In view of the aforesaid discussion, the stance of the learned counsel for the appellant that in view of the principle of law laid down by this Court in the case reported as Abid Akram vs. Danish Zaib & others [2015 SCR 732] it was mandatory for the respondent to obtain relaxation before filing of application for appointment; has no substance. In this regard, Rule 6 of Rules, 1997 (reproduced hereinabove) is relevant, which has thoroughly been elaborated by this Court in Abid Akram's case (surpa), in the following manner: "6. There are two parts of rule 6. The first part vests powers in the Government for relaxation of upper age and lower age limit. In this part powers of the Government have been restricted only to those cases where factors for not applying for a post within the prescribed age limit were beyond the human control. The Government has no power to grant relaxation in every case whenever an application for relaxation is moved. There may be a case where a duly qualified person remained hospitalized for a long period due to some accident or some serious disease and couldn't apply for a post at the time of a previous advertisement he was qualified at that time but due to illness or other factors which were beyond his control to apply for appointment to the post relaxation. Such a case may be an example for exercising the powers of relaxation. The granting of approval on every application presented to the worthy Prime Minister/President or Minister, for relaxation of age limit has not been provided by this rule. It is celebrated principle of interpretation of statute that if a thing is provided to be done in a particular manner, it has to be done in the same manner or not at all (irrelevant part excluded by us for the sake of brevity)
7. Second part of Rule 6 provides that how the relaxation in the age limit shall be granted by the Government. From the plain reading of the rule, it is evident that approval of the Government for relaxation of age limit be obtained by the concerned department. Whenever, an application for initial recruitment is made and a person is not qualified to apply for the post being overage, if he seeks relaxation in his age limit he has to move an application to the concerned department where vacancies are required to be filled and the concerned department shall initiate the case and obtain the approval of the Government for relaxation. Any relaxation, which is granted without initiation of case from the concerned department is not approved by the rules."
It' is unambiguously clear from the above discussion that the filing of the application for relaxation in the upper age limit is mandatory only when Rule 6, ibid, is applicable which provides that relaxation of age limit shall be allowed rarely and only in the cases involving factors beyond human control which merit due consideration. The case of the respondent falls under Rule 4(v) of Rules, 1997 which has an automatic operation and entitles him for relaxation of period during which he remained working on temporary basis without any break in service. In the case reported as Director AJ&K Armed Services Board vs. Abdul Qayyum Khan and others [2020 SCR 492], no application for obtaining relaxation was filed, however, this Court declared the respondent, therein, entitled for relaxation of seven years in view of Rule 4(ii) of Rules, 1997. It will be useful to reproduce here the relevant part of judgment (supra) as follows: "6. No doubt, under the Azad Jammu and Kashmir Armed Services Board Department Service Rules, 2015 the age limit prescribed for recruitment of Deputy Director, B-18, is 50 years but at the same time sub-rule (ii), Rule 4 of the AJ&K Civil Servants Recruitment (Relaxation of Age Limit) Rules, 1997 is also there which provides that in the case of an Ex-Defence personnel, the interval between the date of his release from the Defence Forces of Pakistan, including the Mujahid Force and the date of re-employment in a Civil Department, subject to a maximum of seven years, the whole period of service rendered by him in such Forces shall, for the purposes of upper age limit under any rule, be excluded from his age. The learned High Court has intelligently declared that after excluding the seven years period of service rendered by the respondent in Army, he is not overage. When the learned counsel for the petitioners was confronted in this regard, he failed to point out anything contrary in this regard."
No relaxation in upper age limit has been sought by the respondent on the ground of 'factors beyond the human control', hence, the argument of the learned counsel for the appellant that it was mandatory for the respondent to obtain relaxation prior to filing of application is misconceived, hence, repelled. In this scenario, the impugned judgment passed by the High Court is suffering from no illegality or infirmity, hence, not open for any interference.
Resultantly, finding no force, this appeal is dismissed with no order as to costs.